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Madhya Pradesh High Court · body

2009 DIGILAW 238 (MP)

Ram Babu v. State of M. P.

2009-02-17

A.M.NAIK

body2009
JUDGMENT 1. This appeal has been preferred by the plaintiff against dismissal of suit by the Courts below in concurrent manner. 2. Plaintiff's case in short is that the disputed property belonged to Chhauaram. After his death one Mathuro Bai claimed herself to be his widow and got her name mutated on 25.6.1990 in his place. It is stated that Chhauaram in his life time executed a Will in respect of disputed property on 31.10.1990 in favour of plaintiff. Plaintiff prayed for a declaration that he is in possession of the suit property as owner on the strength of Will and mutation in favour of Mathuro Bai is void and ineffective. According to the plaintiff Mathuro Bai was not widow of Chhauaram and had no right, title or interest in the suit property. However, during the pendency of suit, the executed a registered sale deed on 23.4.1990 in favour of defendants No.3 to 8. This being so, plaintiff also prayed that sale deed be declared void and ineffective qua-him. Decree for perpetual injunction was also sought for restraining interference. 3. Suit was opposed on the ground that Mathuro Bai was widow of Chhauararn and executed a sale deed rightly in favour of other defendants. 4. After recording evidence, learned trial judge dismissed the suit with the finding that Will is suspicious. Mathuro Bai was found to be widow of Chhauararn and in absence of any explanation for her exclusion from property. Will set up by the plaintiff was not found reliable. 5. Aggrieved by the aforesaid, plaintiff/appellant preferred an appeal, which too having been dismissed present appeal has been filed by the plaintiff. 6. Shri A.K. Pandey, learned counsel for the appellant contended that Mathuro Bai was not wife of Chhauaram and, therefore, her exclusion from the suit property has no significance. Secondly, Will having been duly proved by attesting witnesses ought to have been accepted by the Courts below. 7. Considered the submission and perused the record. 8. It may be seen that learned trial Judge in para 27 has observed that Chhauaram had nominated Mathuro Bai as his successor. After appreciating evidence on record, both the Courts below have found that Mathuro Bai was widow of Chhauaram. This being finding of fact cannot be disturbed without any perversity. No cogent material evidence could be pointed out, warranting interference in the finding. 9. After appreciating evidence on record, both the Courts below have found that Mathuro Bai was widow of Chhauaram. This being finding of fact cannot be disturbed without any perversity. No cogent material evidence could be pointed out, warranting interference in the finding. 9. As regard, proof of Will Rajendra Singh (PW-2) and Tillu (PW-3) are stated to be attesting witnesses. Tillu in para 6 has stated that Rajendra Singh (PW-2) put his signature on the Will and thereafter, he put his signature on it. After their signatures, Chhauaram put his thumb impression in execution of Will. Since attesting witnesses are stated to have put their signatures in attestation before execution of Will, it is no attestation in the eye of law as held by this Court in Virendra Singh Pal v. Kashibai Wd/o Narayan Singh Pal and others ( 1998 (2) MPLJ 203 ). This apart, it is observed by learned trial Judge in para 26 that plaintiff was required to examine thumb impression of Chhauaram from handwriting expert. Handwriting expert Jaiprakash Sharma has also declined to confirm thumb impression on the disputed Will vide his report Ex.-P/6. Both the Courts below gave various other reasonings for disbelieving Will which are not found to be improper or unreasonable. 10. Thus, there is no revision warranting interference. There is no involvement of substantial question of law and in the result, the appeal is hereby dismissed sunmlarily.